Dismissals in the Nisur Square case

The judge had no choice; the prosecutors screwed up big-time. But there’s still a chance to make a criminal case for false statements and obstruction of justice.

A Federal judge has dismissed all charges against the Blackwater guards accused of homicide in the Nisur Square massacre. Mary Jacoby at Main Justice has details. [Full text here.]

Basic problem: Under the State Department’s contract with Blackwater, the guards had to submit to questioning after the event. But the Fifth Amendment privilege against self-incrimination means that any statements they made under that compulsion can’t be used against them. Nor can prosecutors follow leads provided by those statements to develop the same evidence. The prosecutors seem to have bungled twice. First they let a grand jury hear some tainted testimony. Then, after they figured that out, they went back to a second grand jury and presented partial transcripts of the testimony to the first grand jury, leaving out the tainted bits. But they also left out some exculpatory material, which is an absolute no-no.

Some quick thoughts:

1. Naturally, there’s outrage in Iraq and elsewhere. If you’re used to a system where the fix is in, you assume that the American government wanted this outcome. Digby, pointing to the Stevens case, sees a pattern where DoJ under Buish made blunders that let right-wing bad guys go free. Personally, I try to avoid using bad motive as an explanation when incompetence (and overzealousness due to professional pride and ambition) seems to suffice. I very much doubt that Monica Goodling called the career Assistant U.S. Attorney running the case and gave him advice about how to screw it up.

2. Those of us who believe in the rule of law just have to suck it up. If the judge’s account of the events is correct, he had no choice but to dismiss the charges. Wingnuts, never limited by logic, are celebrating the liberation of the killers* while also using the result as an argument against giving accused terrorists fair trials. (They’re also treating the decision that a judicial decision rebuking errors made under the Bush Administration are a “stunning blow to Barack Obama’s Justice Department.”)

3. The dismissals were not “with prejudice”: that is, the prosecutors aren’t barred from re-indicting. But it’s hard to see how they can demonstrate now that evidence presented to a new grand jury wasn’t tainted.

4. But the good news – which the judge was at pains to point out – is that the guards, and their superiors, can be charged with obstruction of justice and lying to federal officers both for lying in those compelled interrogations and for the larger cover-up effort. Let’s see if the new crew at DoJ can rectify their predecessors’ blunders.

* Yes, “killers,” not “alleged killers.” That the defendants fired into the crowd is not in dispute. The question is whether they did so justifiably. The fact that they lied about their actions suggests that the answer is “no,” but that is – or would have been – a question for a jury to decide, so I refrain from calling them “murderers” as long as there might be a jury to decide the question.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

14 thoughts on “Dismissals in the Nisur Square case”

  1. Mark:

    I'm about halfway between you and digby. As you say, I doubt they cunningly and deliberately screwed up the case in the first place just because … well, they just weren't that smart.

    On the other hand, I DO think they proceeded with the case knowing from Jump Street that it was screwed up but also knowing that a) Proceeding anyway would temporarily mollify the Iraqi gov't and Iraqi public opinion, and that b) By the time they got called on it, some Democrat would be President to suffer the consequences.

  2. What is stopping Iraq from bringing murder charges under their laws and requesting that we extradite these guys? This would seem like the outcome most likely to bring justice to those killed at this point.

    Getting nailed for obstruction of justice or perjury is small potatoes given the circumstances. If such a shooting happened in California, I would expect charges of aggravated mayhem and first degree murder (homicide while committing an act of mayhem).

  3. "The question is whether they did so justifiably."

    "Main Entry: 1mas·sa·cre

    Pronunciation: ˈma-si-kər

    Function: noun

    Etymology: Middle French

    Date: circa 1578

    1 : the act or an instance of killing a number of usually helpless or unresisting human beings under circumstances of atrocity or cruelty

    2 : a cruel or wanton murder


    Huh, what do you know: If they were justified in the killing, it wasn't a "massacre".

  4. "…Monica Goodling called the career Assistant U.S. Attorney running the case and gave him advice about how to screw it up."

    Of course not. She might have talked with a friend who later talked with the career guy, and pointed out just how many people with pull would be happier if this whole matter just settled down into a non-conclusive affair.

    Mark, this woman was firing appointees for refusal to commit felonies – they were to prosecute people on a political basis, which is both illegal and an offense against the basis of the US justice system. She's also a Regent University graduate, which implies that she's the sort of right-wing evangelical who (metaphorically) wears a 'Gott mit Uns' belt buckle. She'd have no problem justifying any actions.

  5. "Massacre" does have an evaluative sense, but it doesn't necessarily convey a legal judgment. In expressing ourselves in ways that take note of the presumption of innocence, we aren't obliged to cleanse our language of all evaluative associations. So, for example, Nidal Malik Hasan hasn’t yet been found guilty of murder, but only his most tiresome defender would object to the phrase, “Fort Hood Massacre.” That's just what it’s called, & justly. Similarly w/ the Nisur Square Massacre.

  6. Given what we know right now, it's entirely possible that the defendants aren't just innocent in the sense of a legal judgment, it's quite possible they really WERE shooting in self defense. I maintain that "massacre" goes beyond what we know.

  7. "Given what we know right now, it’s entirely possible that the defendants aren’t just innocent in the sense of a legal judgment, it’s quite possible they really WERE shooting in self defense."

    Allow me to respond to this characterization without the least trace of irony or snark: LOL. Everyone is entitled to his own opinion, but not his own facts.

    The facts:

    F.B.I. Says Guards Killed 14 Iraqis Without Cause (http://www.nytimes.com/2007/11/14/world/middleeast/14blackwater.html?_r=1)
    "A separate military review of the Sept. 16 shootings concluded that all of the killings were unjustified and potentially criminal. One of the military investigators said the F.B.I. was being generous to Blackwater in characterizing any of the killings as justifiable."

    "It was obviously excessive. It was obviously wrong." (http://www.reuters.com/article/idUSN0439965120071005)

    Given what we know right now, it's entirely possible that the defendants are cold-blooded murderers who fired without provocation and with reckless disregard for human life.

  8. Obviously you may agree or diagree about what happened. You may think normal uncertainty means no conclusion is warranted. You may also occupy a different moral universe – evaluate events differently even when you agree about what happened.

    But these aren't the kinds of questions that are resolved by reciting dictionary entries. Your point was semantic or conceptual, & mistaken. On reflection, Kleiman may or may not prefer to say "alleged massacre." But he isn't obligated to, to avoid inconsistency, just because he took note of the killers' legal status.

  9. I'm simply pointing out that, so long has he's calling it a "massacre", he's not really refraining from calling them murderers.

  10. So what controls have typically existed in the DoJ to prevent line prosecutors from engaging in this kind of incompetent behavior? The memos (or absence of memos) should be pretty clear in internal records.

  11. Yes, Brett, I understood your little bagatelle. I simply noted it's a mistake. Not every sense of 'massacre' involves 'murder.' (When dictionaries list multiple definitions for a word, it's poor dictionary-brandishing practice to assume a speaker's using it in every possible sense at once, or in your preferred one.) Again, Kleiman doesn't presuppose anyone's guilty of murder just by using the name, "Nisour Square Massacre."

  12. Let's keep in mind, shall we, that most of the people actually shot by the contractors were innocent, no matter how justified they may have been in the shootings if they were being shot at by people they couldn't accurately locate. So yes, Virginia, it's quite possible to let them off the hook legally while still referring to the event as a "massacre", and that no doubt is what Kleiman was doing. (It's even conceivable it was deliberately provoked by Arab shooters to be such a massacre of innocents.)

    I'm getting rather tired of this kind of word-chopping, having just slogged through a similar display of it over on Martin Peretz's site regarding Obama's use of "isolated extremist" (in a context clearly entirely different from saying Abdulmutallab wasn't al-Qaeda connected, since he implied such a connection repeatedly in the rest of the speech).

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